1. The plaintiff herein by his plaint claims to be the owner of a certain house in Gola Lane which contains an agiary and he sued the original defendant, who is dead, (and whose representatives are the present defendants) for trespass upon the said premises, for that the original defendant committed a trespass upon the said house and Agiary by erecting a new wall between them in such a way as to brick in certain window frames in the plaintiff's house and also certain cornices thereof.
2. The defendant's house is situated immediately to the north of the plaintiff's.
3. The plaint as originally filed carelessly set forth the plaintiff's case, which is not surprizing, seeing what the plaintiff admitted in his cross-examination with regard to his knowledge of its contents. It was first amended before the hearing however, to bring his case more in accordance with the facts. But Mr. Robertson, counsel for the plaintiff, had not gone very far in his opening of the 'plaintiff's; case, before he felt that if the plaintiff were bound down to his plaint as amended, as aforesaid, he must fail, because upon that plaint, the plaintiff claimed to be the owner of the premises. Accordingly at Mr. Robertson's request I allowed the plaint to be amended further by the addition of para 1A, which states that 'the plaintiff is also in possession of the said house and premises. '
4. Before I deal with the law and the facts of the case so far as they bear upon the relief to which the plaintiff is entitled, I set out shortly the history of these two houses and premises.
5. Before the Agiary was put up in the premises, which the plaintiff claims to be in possession of, there is no doubt the two houses formed one house and not two, There can also, I think be no doubt that on the south side of what I now call the defendant's premises there was a passage leading from the Gola Lane to the East at the end of which there was a stair-case by which access was obtained to the first floor of what I call the plaintiffs premises. The passage was carried on to the upper floor of plaintiff's premises but the stair-case was open to the sky. To the south of that passage there was a wall, the foundation of which is actually visible now. By my direction the parties' respective surveyors went and measured that foundation wall and that it was agreed that it measured 2 feet across and that defendant's present wall was built to the south edge of that foundation wall and that the Surface of Stone X on plan No. 1 was flush with the Surface of defendant's present wall. It is not, however, clear when the one house was split up into two, but there is no doubt whatever that an Agiary was started in the plaintiff's premises by one M. C. Langrana. There is a good deal of evidence to show that the plaintiff's premises were dedicated to charity, namely, for the purposes of the Agiary, This evidence consists of the wills of the original founder and Goolbai, which have been put in and also the tablet which was put up in 1885 and the evidence of plaintiff, Dastoor and the Mobed Mancherji who is in charge of the premises. The penultimate owner of the plaintiff's premises was one Jeejeebhoy and he prior to 1885 became very hard up and subsequently insolvent in 1883 and he handed over the plaintiff's premises to the plaintiff apparently in the presence of the Dastoor and one or two other Parsi gentlemen and the plaintiff was requested to rebuild the premises for the purposes of an Agiary,
6. It is also to be observed that in Jeejeebhoy's schedule when he became insolvent (which has been put in in evidence), the present plaintiff's premises were not included as a part of his property.
7. It is proved that in 1885 the plaintiff's premises were in a very dilapidated condition and a portion of them had been taken down by the Municipality. At that time also the defendant's premises were in a very ruinous and dilapidated condition but the wall between the two premises was standing. The plaintiff in re-building his premises left the party wall as it was and built his north wall at a distance of nine inchesthere from, along its whole length that space being left, we are told by Raghunath for the purposes of light and air. There is no doubt also that the plaintiff projected the eaves of his house on the north side to the extent of two feet and six inches over the north face of his wall and he also had window shutters opening outwards from his nort wall to the extent of 1-6 and these shutters were opened without any interruption.
8. The defendant became possessed of his property, as appears from the title-deeds of his property, in March 1903. See schedule of title-deeds No, 12.
9. The two main questions in the suit are (1) whether the plaintiff is entitled to maintain the suit and (2) if so, what is the extent of the trespass committed by the defendant.
10. The defendant has built a brick wall right up against the plaintiff's north wall that I have just mentioned. He has actually filled in the window frames of the plaintiff's windows with bricks and mortar and a good deal of the mortar has exuded on to the plaintiff's side and he has also bricked in various cornices of the plaintiff's building as can be seen from the photograph Ex. No. 1. Now, that this is a trespass there can be no doubt-see Lawrence v. Obee (1815) 1 Sta. 22 where driving a nail into the plaintiffs' wall and Gregory v. Piper (1829) B. & C. 591 where placing rubbish against a wall, were held to be trespasses.
11. In my opinion the plaintiff cannot be held to be the owner of the property considering the evidence which has been given of its having been dedicated to charity. No doubt the plaintiff expressly disclaimed the idea of his being the trustee of the property and maintained hecould sell it or do anything he liked with it or convert it into a chawl. The question, then, arises: Is the plaintiff's possession sufficient to entitle him to see Now, that the plaintiff is possessed of the property I think there can be no doubt. In the first place he built the property. He alone has been paying the bills therefor. He selected the Dastoor for it, he says. He has appointed the Mobed, who gave his evidence, Mancharji. He pays for the upkeep of the agiary. The plaintiff is in possession and that must be either in his own right or in that of other persons. For the purposes of this suit I do not think it makes any difference. His case is that it matters not to the defendant what the character of his possession is-so long as he can prove that the defendant is interfering with his possession. If he were owner the defendant's acts would constitute an injury to the reversion for which he could sue. Mayfair Property Go. v. Johnston  1 Ch. 508
12. The conclusion, therefore, I have come to is that the plaintiff by right of his possession of this property is entitled to maintain this suit. In support of this finding, I refer to the following case. Luttrel's case 4 Coke 84 B; where it is stated as follows :-'The plaintiff in this, as in all other possessory actions, may declare upon his possession, without alleging the precise estate of which he is seised; or laying any title, either by grant or prescription, to the thing which he is disturbed in and hindered from enjoying it-see Coryton v. Lithebye 2 Sauna. 113.' But of course the plaintiff' must prove at the hearing his possessory title. In Spooner v. Brewster (1825) 3 Bing. 136 it was held that although the freehold of a church yard was in the parson, trespass lay for the erection of a tomb stone against a person who wrongfully removed it from the church yard and erased the inscription. See also Ismail Ariff v. Mahomed Ghouse (1893) L.E. 20 I.A. 99. In Ismail Ariff v. Mahomed Chouse the Privy Council in a case in many respects similar to this held the plaintiff entitled to a declaration that he was lawfully entitled to possession and the relief consequent thereon.
13. This case was followed in H&nmantrav; v. The Secretary of State for India ILR (1900) 25 Bom. 287 . See also Gangaram v. Secretary of State for India ILR (1895) 20 Bom. 798 and Asher v. Whitlock (1865) L. R. I. Q.B. I the principles in which last case were finally established by Sir M. Westropp in Prern-raj v. Narayan ILR (1882) 6 Bom. 215 v. b. See further Every v. Smith (1857) 26 L. J. Ex. 344 Another point is that assuming the old wall between plaintiff's and defendant's premises to have been a party wall trespass will lie for the occupation of the wall to the exclusion of the plaintiff. Stedman v. Smith (1857) 8 E. &. B. I.
[ His Lordship after considering the evidence declared the following decree.]
14. I pass a decree for the plaintiff. I declare the plaintiff entitled to the possession of the strip of ground between his and defendant's premises to the extent of one foot six inches apart from projections and cornices further to the north than the plaintiff's present north wall. I direct the defendant forthwith to remove so much of the wall as trespasses on the strip of ground aforesaid: and to refrain from permitting the said strip of ground to be incumbered by any bricks or urn-tar or obstruction whatsoever. As to the costs of this suit I cannot but think that a good deal of the time of this Court has been fruitlessly taken up by the mode in which the plaintiff launched his case. Had he simply relied on his possessory title the case would have occupied a much shorter time than it did. After the consideration I have come to the conclusion that the defendant must pay to the plaintiff three-fourths of his costs of this suit and of course bear his own costs. The plaintiff must bear one-fourth of his own costs and pay the costs of and incidental to the amendments of the paint and of defendant's supplemental written statement. I do not think the plaintiff should be made to pay one-fourth of defendant's costs as well as his own for the trespass was a very daring one in my opinion.